STEPHEN J. ISAACS, 859-252-5757, a Kentucky DUI Attorney with Isaacs Law Office, writes about defenses to Driving Under the Influence / DUI / DWI in Kentucky.

An essential element for a DUI conviction in Kentucky according to the Kentucky DUI statute, KRS 189A.010 (1), requires that “a person shall not operate or be in physical control of a motor vehicle anywhere in this state.” A person who is not in control of a motor vehicle simply cannot be guilty of a DUI.

So for example, if an officer observes a properly parked vehicle with an intoxicated person sitting behind the wheel, with the keys in the ignition and the motor running, and the person inside sitting there just smoking and texting on their cell phone, is that behavior sufficient to meet the proof of operation to support a DUI arrest? What if the intoxicated person was asleep at the time that the officer arrived? The simple answer to both questions is it depends on the facts and whether the prosecutor can prove the intoxicated person was operating or in control of the vehicle.

In order to prove operation or control of the vehicle to support a DUI arrest and subsequent conviction, the prosecutor has the burden of proving the following four factors:

Whether or not the person in the vehicle was asleep or awake;

Whether or not the motor is running;

Location of the vehicle and all the circumstances bearing on how the vehicle arrived at that location; and

The intent of the person behind the wheel.

The first factor, whether a person is asleep or awake, is easily observed by the officer. But by itself it is not sufficient to support a DUI arrest. Courts have held that a sleeping person is not in operation of a vehicle.

The second factor may be more difficult since determining whether or not a gasoline or diesel engine is running is easy but with the introduction of hybrid and electric vehicles on the roadways in recent years it does make it more difficult to determine whether or not an electric motor is running since they are mostly silent when running and designed to remain off while the vehicle is stopped. However, at least one court has held that merely starting a vehicle’s engine or motor is not an exercise of actual physical control.

The third factor, the location of the vehicle and all the circumstances bearing on how the vehicle arrived at that location, are important in determining operation. For example, when did the driver become intoxicated: before or after parking the vehicle? Was the driver discovered before any new driving could begin?

The fourth factor, the intent of the person behind the wheel, is more difficult to prove and has been the subject of numerous court hearings over the years. Kentucky courts have held that sleeping drivers in properly parked vehicles could not have had any intention to drive under those circumstances. Furthermore, as a court stated, merely being awake in the driver seat of a vehicle with the engine on does not require finding of an intent to drive or it would constitute a separate factor in the determination of whether the person and the vehicle was awake or asleep.

Answering the questions in the example above, a person who is sitting in the driver seat of a properly parked vehicle in which that person can comfortably smoke and text, rather than using the vehicle as a mode of imminent transportation, shows that the person did not intend to drive. In that situation the person is not in operation of the vehicle to support a DUI arrest.

Law schools train attorneys in the laws generally. Yet as an attorney I have learned over the years that there is no substitute for practical experience achieved after years of working as a DUI, Criminal Defense, Wrongful Death, and Personal Injury attorney. This holds true in defending DUI cases. DUI cases involve a great deal of science in addition to understanding the basic governing rules and regulations and how they apply to a specific client's set of facts. Additionally, Client's may not adequately recall the events around their arrest. Officer's may not properly record pertinent facts supporting the driver's innocence. All together the rules and regulations as applied to the facts tend to make DUI cases very complex. Because of the complexity of the DUI cases many attorney's consider them to be among the most difficult to defend.

Because of this complexity at times attorneys make mistakes when it comes to defending DUI clients . . . mistakes potentially harmful to their clients resulting in loss of the client's driving license, having to pay significant fines, being sent to jail, having to pay huge increases in their insurance rates, and more.

To protect yourself and in order to make a knowledgeable decision in which attorney to hire, consider a few of the following mistakes I have observed made by other attorneys over the years:

Mistake 1 - The Attorney Advises You that the Case Can Not be Won

Let's be real and consider the underlying facts of why an attorney would inform a potential client or a client that their DUI case can not be won. It comes down to the initial intake and the attorney collecting and then understanding all of the facts of the case. I have come to believe that attorney's who do not spend time with the client at the onset in order to properly evaluating all of the evidentiary facts before recommending that the potential client just plead guilty is the single most important mistake the attorney may make when representing the individual for DUI.

In addition to my other practice areas, I’ve been practicing as a Kentucky DUI Defense lawyer since 1999. I typically spend no less than 45 minutes with potential clients collecting information about the traffic stop and the arrest at the beginning of every DUI representation. Let me repeat that: I spend no less than 45 minutes with the potential client collecting facts! Yet I have received calls for second opinions or after their attorney had lost their case from individuals charged with DUI for second opinions where their attorney had recommended a guilty plea. On review of some of those cases where I picked up the representation I went ahead and obtained favorable outcomes for my clients. In my opinion, I have come to believe that after obtaining the police report and looking at the breath test results many lawyers simply advise their client to plead guilty without considering all of the facts which may prove a client's innocence. Some of those facts include errors made by the officer during the roadside standard field sobriety tests, known as SFST's. Other significant facts include the officer's failure to follow state laws and procedures during the collection of the blood, breath, and urine. Sometimes those facts support a finding that the officer was not being accurate in his reporting of the facts.

Then there are potential client's who decide to plead guilty to save money! I call these economic DUI guilty pleas. I do not like them. In reality this type of plea may cost the accused much, much, much more to plead guilty than to fight the DUI. Consider the fact that a DUI today will now remain on a person's driving and criminal history for at least ten (10) years. During that time period, insurance companies will see the DUI in the public record and may increase the rates. The DUI could affect the accused's future employment or prevent entry into the military. The DUI could also affect a person's ability to obtain or maintain a commercial driver's license. Plus, a DUI may prevent a person from traveling into some foreign countries such as Canada. And then there is the family impact. With so much at stake a person should not simply plead guilty to a DUI because they want to save money to avoid paying an attorney to defend them.

There are also other more serious problems with the economic DUI guilty plea. Every guilty plea must be made freely, knowingly, intelligently and voluntarily. If you believe you are innocent (except for cases where the accused does not admit guilt but believes the evidence against them strongly indicates guilt - usually when they had no recall due to impairment) and enter a guilty plea to a DUI you are not being truthful and therefore misleading the court. Additionally, attorney's who recommend such a plea for a low fee may be asking for a malpractice claim.

Mistake 2 - The Attorney Advises You Not to Bother to Fight the Pretrial License Suspension in DUI-1st Cases For Refusals

Another common error I have observed it attorney's who advise their client's to not conduct a refusal hearing because they do not believe that these hearing can be won or worth their time. A refusal hearing can be won. They can often be won based on defenses such as: 1) the refusal was not obtained within two hours of cessation of the operation of the vehicle; 2) the officer failed to read the Implied Consent warning to the driver; 3) the officer did not hear or listen to the accused agree to take the tests; 4) the officer based the refusal on the accused's actions and not words; and etc.

Importantly, by not conducting a refusal hearing the defendant doesn’t get to question the arresting officer. Why is this important? Because this may be the only time the lawyer may be able to question the arresting officer under oath soon after the arrest when the officer's recollection is likely to be accurate.

Mistake 3—The Lawyer Does Not Personally Check Out The Location of the Arrest

I visit the location of the arrest whenever practical or have client's provide me with photographs of the location. Yet it's been my experience that many lawyers don’t visit the arrest location. I believe this to be extremely important. Why? In order to collect evidence which shows the driver's innocence. On visiting the arrest locations I have found security cameras which recorded the stop, the roadside tests, and arrest. I have found debris, obstacles, and inclined pavement which made the roadside tests difficult to perform. I have found reflective surfaces and traffic patterns which interfered with the roadside tests. For example, in one case, the officer claimed that my client's vehicle was weaving on the road and that the road was straight when in fact after visiting the arrest location I discovered that the road was winding and not straight: from the officer's position some distance away he merely saw my client's vehicle following the winding road and erroneously stated my client was weaving. In another example, I used the photos of the scene of the arrest to point out to the officer who testified that he never lost sight of my client that there was a parking structure, dumpsters, a police Swat van, and more which blocked his view so he did loose sight of my client's vehicle at times.

Visiting the location of the stop and arrest simply makes it easier for your lawyer to ask probing questions about the roadside test, and, in some cases, point out a physical impossibility to the jury.

Mistake 4— The Lawyer Did Not Explain The Administrative Penalties Associated With a Conviction or a Guilty Plea

It's important that your lawyer explain to the client all of the penalties before the client decides to enter a guilty plea or before deciding to take a matter to trial. It is legal malpractice if the lawyer doesn’t advise the client about all of the penalties, including administrative sanctions, resulting from a conviction.

What are the administrative sanctions? They can include but may not be limited to: license suspension or revocation; license plate impoundment; requirement for a mandatory ignition interlock device; alcohol and drug assessment and treatment program; inability to travel to certain countries; home state license suspension which may be different than Kentucky's; and etc.

I find that this mistake is all too common. And it is important because every guilty plea must be made freely, knowingly, intelligently and voluntarily: not knowing this information may affect the client's rights.

Mistake 5— The Lawyer Did Not Offer the Defendant the Option to File A Motion to Suppress

A lawyer should file, after discussing this with the client and with the client's permission, a Motion to Suppress evidence when it appears that the officer violated the client's constitutional rights. Bringing this motion may result in the court ruling that certain evidence may not be used at the DUI trial. In some cases, the court may rule in the client's behalf which could result in a win of the client's case. However, it is important to note that the court may impose sanctions against the lawyer and client for filing a Motion to Suppress when the facts do not support such a motion.

According to some experts, not filing a Motion to Suppress when warranted prior to trial is a common mistake. It is a mistake as it is a missed opportunity to eliminate some or all of the State's evidence. Just as important, it also provides an opportunity to question the arresting officer and to lock in their testimony for later use at trial.

Additionally, a few Kentucky counties have special programs where the parties (prosecutor and defense attorney) may petition the court to set aside certain misdemeanor guilty pleas if the convicted person meets certain requirements, including the fulfillment of their sentence and payment of all fines. These programs typically apply when a person's career is at risk. Please contact your criminal defense attorney to learn about the availability of these programs.

A DUI defense I have raised, albeit rarely, pertains to the “Auto Brewery Syndrome” or, as is referred to by the medical community, “Bladder Beer” and “Gut Fermentation Syndrome”. The DUI criminal defense attorney thereafter argues to the prosecutor and to the court that the defendant’s body gets drunk even if they didn’t drink alcohol. This defense comes to light after an officer stops a driver with this condition and charges them with a DUI and the driver truthfully denies drinking alcohol or has had very little alcohol to drink but registers a high blood alcohol concentration (BAC).

This syndrome is a rare (very rare) medical condition in which yeast (such as candida) inside the digestive system ferments carbohydrates and generates enough alcohol to cause intoxication. The effects of the syndrome can have a serious effect on the everyday life of the person with the disease because the symptoms are very similar to that of a person who has been drinking. The symptoms may include, but are not limited to, bouts of goofiness, dizziness, hangovers, disorientation, dry mouth, chronic fatigue syndrome, anxiety, and depression.

To understand Auto Brewery Syndrome one has to understand how the body generates alcohol. Yeast fermenting in the person’s digestive system causes the carbohydrates to be turned into alcohol inside the person’s body in a process called endogenous ethanol production. Endogenous ethanol production is a normal process which produces alcohol inside every person, including people who do not drink alcohol. Through this process the normal person may generate very small but measurable levels of alcohol in their blood typically much less than 0.004 blood alcohol concentration (BAC). To get a significant measurable level of alcohol from this process requires increased fermentation and/or a diminished ability to metabolize alcohol.Typically, neither the officer nor the person charged with a DUI are aware that the person suffers from Gut Fermentation Syndrome: the officer either makes a safety investigation stop to assist a disabled vehicle or a traffic stop. The traffic stops are generally valid, such as when the officer observes a vehicle driver exhibiting at least one of the known visual DUI detection clues or some other traffic infraction, such as speeding or failing to comply with a traffic control device. Many of the visual DUI detection clues officers look for include but are not be limited to: weaving, swerving, nearly colliding with another vehicle, unexplained speeding up or slowing down, driving well below the posted speed limit, stopping in the lane of travel for no reason, driving without headlights at night, driving the wrong way down a one-way street, turning in a wide radius, experiencing difficulty parking, stopping well before or after the traffic light intersection marked line, driving over the dividing line, driving over the fog line, or improperly changing lane.

In their reports, the officer alleges that the driver had the odor of alcohol about their person, had bloodshot and watery eyes, and either experienced difficulty performing the standardized field sobriety tests or simply failed them. And as is also typical the officer refuses to believe that the driver after they informed the officer they had nothing alcoholic to drink. But it tends to be the DUI defense lawyers who research and investigate their client’s claims who find out about Gut Fermentation Syndrome and thereafter have their clients evaluated.

As would be expected with the Beer Bladder defense, the Kentucky DUI criminal defense attorney will require expert medical testimony to explain this condition to the court and to the jury. But even with medical testimony, ignorance that the person is impaired while operating a motor vehicle in the state of Kentucky is not necessarily a defense to the charge of DUI. The reason is that Kentucky DUI law does not include intent.The Kentucky DUI statue KRS 189A.010(1)(a) states in part, "A person shall not operate or be in physical control of a motor vehicle anywhere in this state: (a) Having an alcohol concentration of 0.08 or more ...." Of more concern is how the statute applies to drivers under 21 and therefore subject them to Kentucky's zero-tolerance law since there is a greater likelihood that the BAC level caused by this syndrome would below the legal limit of 0.08 BAC but above 0.02 BAC. KRS 189A.010(1)(f) states in part,"A person shall not operate or be in physical control of a motor vehicle anywhere in this state: (f) Having an alcohol concentration of 0.02 or more ...". Ultimately, the validity of this defense will fall on the Kentucky DUI lawyer arguments about the evidence of the medical condition to the jury.

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